Employer Must Pay H-1B Employee In Nonproductive Status Unless It Proves Bona Fide Termination

United States Department Of Labor - This decision discusses an employer’s responsibility to pay an employee who holds an H-1B visa holder for the period when the employee is in "non productive status" because of factors such as lack of work, lack of a permit or licence or benching. This decision affirms that an employer is required to pay H-1B visa holders during that period unless the employer can prove that it effected a bona fide termination of that employee.

Where the employer can prove that it actually terminated the employee, it will likely escape the backpay liability. To show a bona fide termination, an employer may rely on the fact that it notified the USCIS of the termination of the H-1B holder’s employment. While this represents one of the factors in the determination, the employer is permitted to submit other types of evidence to prove that it actually terminated the H-1B holder’s employment. Such evidence may include a termination letter, removal from the payroll and such other documentary evidence. If unable to prove a bona fide termination, the employer will be required to pay back wages to the H-1B alien. [Read the decision on H-1B Employee Pay During Non-productive period]